question of liability, it would seem that the proper course is to move for judgment under Order XL, r. 7, which provides that "where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, the plaintiff may set down a motion for judgment as soon as such issues or questions have been determined. If he does not set down such a motion, and give notice thereof to the other parties within ten days after his right to do so has arisen, then after the expiration of such ten days any defendant may set down a motion fort judgment and give notice thereof to the other parties." So that in these circumstances this rule seemingly applies in place of Order XXXVI., r. 55.

Illustration.

An action for an injunction to restrain an alleged nuisance by noise was referred to an official referee under the Arbitration Act, 1889, s. 13, for enquiry and report. By his report the referee found that no nuisance existed, and the defendant moved, under Order XL., r. 7, to have the action dismissed with costs. Held that this was a proper motion (Larkin v. Lloyd (1891), 64 L. T. 507).

Stirling, J., thought that notice to a co-defendant could not properly be dispensed with under the above rule, and directed a motion to stand over in order that such notice might be given (Boaler v. Brodhurst, [1892] W. N. 121).

Master no power to adopt or vary report.

Notwithstanding Order LIV., r. 12A, under which a Master may exercise all the jurisdiction conferred upon the Court or a judge by the Arbitration Act, a Master has no power to adopt the report of a referee under this subsection, because the jurisdiction of a Master can be exercised only in chambers, whereas by Order XXXVI., rr. 54 and 55, any application to adopt or vary the report of a referee must be made in. Court (see Cooke v. Newcastle, &c., Co. (1882), 10 Q. B. D. 332; 52 L. J.. Q. B. 337).

In the King's Bench Division the application is made to a Divisional Court, and in the Chancery Division to the judge to whom the action is assigned.

Appeal from order on motion to vary report.

For the purpose of an appeal, an order on a motion to vary a referee's report is interlocutory (Dunkirk Colliery Co. v. Lever (1878), 9 Ch. D. 20). An appeal is to the Court of Appeal.

Power of Court to require explanations or reasons.

The Court has power to require any explanation or reasons from the referee (Order XXXVI., r. 52).

Illustrations.

1. An architect was appointed by the Court, with the consent of both parties, as a special referee to enquire into and report on leakage that drained from the defendant's stables into the plaintiff's house, and on the amount of noise caused by the horses kept in the stables, and he was by the order to attend at the sitting of the Court. He made his report and attended the Court on a certain day, and he then answered further questions arising from his report (Broder v. Saillard (1876), 2 Ch. D. 692).

2. A special referee had made a report as to damages caused by a flood. He then answered a set of interrogatories administered by the parties and made an additional report to the judge. On appeal at the conclusion of the arguments he attended in Court and gave explanations asked for by that Court (Rust v. Victoria Graving Dock Co. (1887), 36 Ch. D. 113, at pp. 117, 129).

Whether such explanations will be asked for by the Court is a matter in the discretion of the Court, and apparently this course will only be adopted if the Court, looking at the evidence, is of opinion that the referee may have decided upon some ground that is wrong in law. Cotton, L.J., in Miller v. Pilling (1882), 9 Q.B.D. 736, at p. 740, said: "The official referee can be asked his reasons, but in order to set aside the report it must be shown that he decided on a wrong view of the law." If the referee is asked for any explanation or reasons by the Court, he should not be regarded as a witness, but as acting in a quasi-judicial capacity and as assisting the Court. Sir George Jessel, M.R., in Broder v. Saillard (1876), 24 W. R. 456, said: "He preferred, as the referee was assisting the Court in a quasi-judicial capacity, not to allow him to be called as a witness. He therefore directed the referee to write the points at the foot of his report, and to sign the addition thus made to his report."

Costs in the case of a report under s. 13.

It would appear that a referee to whom "any question arising in any cause or matter" has been referred under s. 13 (1) for enquiry or report has no power to deal with the question of costs, unless express power to do so is given to him by the terms of the order of reference. In the absence of such an express power the costs of the reference would seem to be in the power and discretion of the Court, as part of the costs of the cause or matter.

Order XXXVI., г. 55B, gives power to an official referee to deal with costs as the Court or a judge might have done where the whole of any cause or matter has been referred to him, and by r. 55c of the same order this is extended to officers of the Court, special referees, and arbitrators, and to cases where any question or issue of fact in any cause or matter is referred, but it is submitted that г. 55B, as sup

plemented by r. 55c, is only applicable to references for trial under s. 14 of the Act, and does not apply, as might be supposed from the wording of r. 55c, to questions referred under s. 13 for enquiry or report.

It does not appear to be contemplated by these rules that referees on a reference for enquiry or report should be at liberty to deal with questions of costs; their duty, under s. 13 of the Act, is not to decide the case, but merely to report to the Court upon the questions referred to them in such a way that the Court may come to a decision upon the whole matter.

In Carr Bros. v. Dougherty (1898), 67 L. J. Q. B. 371, it was decided that where an action is referred under s. 14, and the referee makes an award which is silent as to costs, costs follow the event; and Phillimore, J., said that he had come to the conclusion " that s. 15, subs. (2), of the Arbitration Act, 1889, makes the report or award of an official or official referee or arbitrator equivalent, with regard to costs, to the verdict of a jury." This decision, if and in so far as it may be considered to include a report under s. 13, is obiter, and if the report of a referee under s. 13 were equivalent to the verdict of a jury, costs would follow the event of the report, unless otherwise decided for good cause by the Court, but it is submitted that a report under s. 13 is not equivalent to the verdict of a jury, the reference not being a trial (Re Brook, Sykes v. Brook (1881), 29 W. R. 821). "The word 'enquiry' is used, because it is not meant to have the same result as a trial" (per Esher, M.R., in Wenlock (Baroness) v. River Dee Co. (1888), 19 Q. B. D., at p. 158).

Statement of special case by referee.

By s. 19 of the Arbitration Act, "any referee, arbitrator, or umpire may at any stage of the proceedings under a reference, and shall, if so directed by the Court or a judge, state in the form of a special case for the opinion of the Court any question of law arising in the course of the reference."

This section would appear to apply to referees acting under s. 13 of the Act, but having regard to the fact that the duties of referees under that section are limited to assisting the Court, so that the Court, and not the referee, may decide the issues in the action, there would be few cases in which the Court would direct a referee to state a special case on questions of law for the opinion of the Court during the proceedings before the referee.

The referee has a discretion, under Order XXXVI., r. 52, to submit any question arising in the reference to him for the decision of the Court or to state any facts specially. An order was made in the case of Bristol Steam Navigation Co. v. Indemnity Mutual Marine Insurance Co. (1887), 57 L. T. 101, under this rule. No question was raised as to the jurisdiction to make the order, and it does not appear whether

the reference was under s. 56 or s. 57 of the Judicature Act, 1873, but the form of the special case indicates the kind and form of report which may be made by a referee.

Previous legislation.
Jurisdiction to refer.

SECTION 14.

REFERENCES FOR TRIAL.

"Prolonged examination of documents."

"Scientific investigation."

"Local investigation."

Question consisting "wholly or in part of matters of account." Discretion of Court.

"Special referee or arbitrator respectively agreed on by the parties." Summons to refer.

Appeal from order of reference.

Reference to Master under Order XIV.

References by order of Court outside the Arbitration Act.

Parties to consent must be parties on the record.

Authority of solicitors to refer.

Authority of counsel to refer.

Express limitation of authority of counsel or solicitor.

Submission by order of Court.

Submission by judge's or Master's order.

Order of Nisi Prius, how drawn up.

Indictment.

Reference on "the usual terms."

Amendment of submission.

Adding interested third persons as parties.

Pleading award to further maintenance of action.

Submission by order of County Court.

Submission by order of Quarter Sessions.

Costs.

Taxing costs out of sessions.

Setting aside judgment pursuant to award.

Effect of failure of the reference.

Reference failing, action proceeds.

When juror withdrawn.

When verdict taken, new trial on failure.

Infant plaintiff avoiding award.

Award set aside.

When cause referred generally.

Practice in equity.

Abortive reference by Quarter Sessions.

14. In any cause or matter (other than a criminal proceeding by the Crown)

(a) If all the parties interested who are not under disability consent: or, (b) If the course or matter requires any prolonged examination of docu

ments or any scientific or local investigation which cannot in the opinion of the Court or a judge conveniently be made before a jury or conducted by the Court through its other ordinary officers: or, (c) If the question in dispute consists wholly or in part of matters of account;

the Court or a judge may at any time order the whole course or matter, or any question or issue of fact arising therein, to be tried before a special referee or arbitrator respectively agreed on by the parties, or before an official referee or officer of the Court.

Previous legislation.

Some general observations are necessary upon this section, because it is one of the most important in the Arbitration Act. The Act being not merely a consolidating statute, but also an amending one, it is proposed to refer to some of the provisions of the Common Law Procedure Act, 1854, and the Judicature Acts, 1873 and 1884, because the present Act was passed with full knowledge of these provisions (Hurlbatt v. Barnett & Co., [1893] 1 Q. B., at p. 79).

By s. 3 of the Common Law Procedure Act, 1854, the Court had power to order a reference of the whole cause or matter, when the matter in dispute consisted wholly or in part of matters of "mere account" (see Clow v. Harper (1878), 3 Ex. D. 198) which could not conveniently be tried in the ordinary way.

By s. 57 of the Judicature Act, 1873, in any cause or matter (other than a criminal proceeding by the Crown) before the High Court in which all parties interested who were under no disability consented thereto, and also without such consent in any such cause or matter requiring any prolonged examination of documents or accounts, or any scientific or local investigation which could not, in the opinion of the Court or a judge, conveniently be made before a jury, or conducted by the Court through its other ordinary officers, the Court or a judge might at any time order any question or issue of fact arising therein to be tried either before an official referee or before a special referee to be agreed on between the parties (see Ward v. Pilley (1880), 5 Q. B. D. 427; Knight v. Coales (1887), 19 Q. B. D. 296; Dawes v. Fountain (1887), 3 T. L. R. 347; Longman v. East (1877), 3 C. P. D. 142).

And by s. 9 of the Judicature Act, 1884, in any cause or matter (other than a criminal proceeding by the Crown) in which all parties who were under no disability consented thereto, the Court or a judge might at any time order the whole cause or matter to be tried before an official referee, who had power to direct in what manner the judgment of the Court should be entered, and to exercise the same discretion as to costs as the Court or judge could have exercised.

By the repeal of s. 3 of the Common Law Procedure Act, 1854, the Arbitration Act has abolished compulsory references to arbitration. It was intended by the Common Law Procedure Act that the old law